CARLYLE JUSTIN PICKERING (plaintiff/respondent) v JOHN McARTHUR (defendant/applicant)
FILE NO/S:
Appeal No 4013 of 2005 DC No 1533 of 2001
DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
16 August 2005
DELIVERED AT:
Brisbane
HEARING DATE:
8 August 2005
JUDGES:
McMurdo P, Keane JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Application for leave to appeal dismissed with costs
CATCHWORDS:
PROCEDURE - INFERIOR COURTS - QUEENSLAND - DISTRICT COURTS - CIVIL JURISDICTION - APPEAL AND NEW TRIAL - APPEAL TO SUPREME COURT - FROM WHAT DECISIONS AND ON WHAT GROUNDS - where applicant sought leave to appeal from decision of a District Court judge not to strike out the respondent's statement of claim - where leave to appeal was necessary pursuant to s 118(3) District Court of Queensland Act1967 (Qld) - whether a matter of pleading or procedure will usually constitute a substantial injustice requiring the grant of leave to appeal
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE NERVOUS SHOCK OR MENTAL DISORDER - where the applicant operated a business as a massage therapist - where the respondent was a former client of the applicant - where the respondent had commenced an action for negligence against the applicant alleging that the applicant had held himself out as qualified to give relationship advice to those who came to him for massage therapy - where it was also alleged that as a result of receiving such advice the respondent had ended a de facto relationship and suffered psychological injury - where the respondent alleged that the advice which had caused him to end his de facto relationship had been given in breach of the applicant's duty to take reasonable care in the provision of relationship advice - where the applicant applied to a District Court judge to strike out the respondent's statement of claim on the grounds that it did not disclose a cause of action known to law - where District Court judge refused to grant this application - whether, if the facts alleged were proved, it was arguable that the applicant owed the respondent a duty to take reasonable care when giving relationship advice
M Grant-Taylor SC, with C Heyworth-Smith, for respondent
SOLICITORS:
Woodgate Hughes Solicitors for applicant Maurice Blackburn Cashman for respondent
McMURDO P: This is an application for leave to appeal from an interlocutory order…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Pickering v McArthur [2005] QCA 294
Case
[2005] QCA 294
Decision Date
CaseChat Overview and Summary
The matter of Pickering v McArthur involved an appeal from a decision of a District Court judge, which had refused to strike out a statement of claim brought by McArthur against Pickering. The claim was grounded in allegations of professional negligence by Pickering, who operated a business as a massage therapist. McArthur, a former client, alleged that Pickering had provided unqualified relationship advice, which led McArthur to end his de facto relationship and suffer psychological harm. The central issue before the court was whether the statement of claim disclosed a cause of action known to law and whether the facts, if proven, would establish that Pickering owed McArthur a duty of care in providing such advice.
The court examined whether the case involved a matter of pleading or procedure that constituted a substantial injustice, potentially warranting leave to appeal. It considered the principles established in relevant precedents, such as Rigney v Littlehales, San Sebastian Pty Ltd v The Minister, and Tame v New South Wales, to determine the applicability of a duty of care in the context of providing relationship advice. The court also assessed whether, if the facts alleged were proven, it was arguable that Pickering owed a duty to McArthur. The reasoning applied by the court involved a careful analysis of the elements of negligence, the nature of the relationship between the parties, and the scope of the duty of care owed by Pickering in his professional capacity.
After considering the arguments and the relevant legal principles, the court concluded that the statement of claim, even if fully proven, did not establish a cause of action known to law. The court held that there was no duty of care owed by Pickering to McArthur in relation to the advice provided during a massage session. Consequently, the application for leave to appeal was dismissed with costs.
Orders
Orders of the court
Application for leave to appeal dismissed with costs